DePaul Law Review
Volume 3
Issue 2 Spring-Summer 1954
Article 14
Extradition - Pending Judicial Hearing Under
Illinois Fugitive Act No Bar
DePaul College of Law
Follow this and additional works at: http://via.library.depaul.edu/law-review
Recommended Citation
DePaul College of Law, Extradition - Pending Judicial Hearing Under Illinois Fugitive Act No Bar, 3 DePaul L. Rev. 289 (1954)
Available at: http://via.library.depaul.edu/law-review/vol3/iss2/14
This Case Notes is brought to you for free and open access by the College of Law at Via Sapientiae. It has been accepted for inclusion in DePaul Law
Review by an authorized administrator of Via Sapientiae. For more information, please contact [email protected], [email protected].
CASE NOTES
EXTRADITION-PENDING JUDICIAL HEARING UNDER
ILLINOIS FUGITIVE ACT NO BAR
Petitioner appealed from an order quashing a writ of habeas corpus filed
to secure release from custody under an extradition warrant issued by the
Governor of Illinois on requisition of the Governor of New York. Petitioner contended that the pending judicial hearing on a fugitive complaint
filed previously in the Municipal Court of Chicago in accordance with
the Illinois Fugitives from Justice Act,' precluded issuance of a rendition
warrant until compliance with the statute, and that failure to do so was a
denial of due process under the provisions of the 14th Amendment to the
United States Constitution. It was held that the pending judicial hearing
to which the accused was entitled on the fugitive complaint was rendered
functus officio by the requisition of the demanding state for a rendition
warrant, and action on the requisition was not precluded by the pendency
of the judicial hearing on the fugitive complaint. People ex rel. Millet v.
Babb, 1111. 2d 191, 115 N.E. 2d 241 (1953).
There is no previous case exactly in point, although the same contention
was raised in People ex rel. Gilbert v. Babb.2 There, it was held that the
petitioner, in moving for a hearing by the Governor on the requisition
made by the demanding state subsequent to the fugitive complaint, waived
his right to a judicial hearing. The court in the instant case distinguished
it on that basis.
Extradition is a creature of statute8 and, as it relates to the regulation of
interstate relations, the United States Constitution and federal statutes
enacted in aid thereof as interpreted by the United States Supreme Court
are controlling. 4 However, state statutes may be enacted in conformance
with and in furtherance of the controlling federal law.5
Under Illinois statute there are two alternate methods by which extradition proceedings may be commenced. 6 In order for a valid extradition
under either method, federal law states two requirements: (1) that the
accused is substantially charged with the commission of an extraditable
offense in the demanding state, and (2) that the accused is a fugitive from
justice, i.e., that he was in the demanding state at the time of the alleged
1 111.
Rev. Stat. (1953) c. 60, §§ 3 and 4.
2415 111. 349,114 N.E. 2d 358 (1953).
3U.S. Const. Art. 4, § 2; 62 Stat. 822 (1948), 18 U.S.C.A. S 3182 (1951); m. Rev. Stat.
(1953) c.60.
4United States ex rel. McCline v. Meyering, 75 F. 2d 716 (C.A., 7th, 1935); Ex
parte Rubens, 73 Ariz. 101, 238 P. 2d 402 (1951), cert. denied 344 U.S. 840 (1952).
5 Holmes v. Babb, 414 II. 490, 111 N.E. 2d 316 (1953); Bishop v. Jones, 207 Miss. 423,
42 So. 2d 421 (1949); Spiak v. Seay, 185 Va. 710, 40 S.E. 2d 250 (1946).
6 People ex rel. Gilbert v. Babb, 415 111.349, 114 N.E. 2d 358 (1953).
DE PAUL LAW REVIEW
offense. 7 The first is a question of law; the second, a question of fact.8
The difference between the two methods is primarily one of proof of the
first of these two elements, since by both methods the determination of
the fact question resides in the Governor.9
The first method of extradition is by direct application to the Governor
by the demanding state. It is the method contemplated by and in conformance with the controlling federal law. Under this procedure, whether
or not the accused is substantially charged is determined by the Governor
on the face of the requisition papers which, with the rendition warrant,
constitute a prima facie case against the accused. 10
The second method supplements and expedites the extradition process
by providing for the arrest and detention of the accused prior to any
action by the demanding state. It is in harmony with the federal statute in
accomplishing this purpose. By this method, the asylum state is compelled
by consideration of due process to offer evidence at the hearing on the
fugitive complaint to justify the restraint of the accused's liberty. The
evidence offered at the judicial hearing stands in the stead of the requisition papers present in the first method.
However, extradition is a summary and ministerial proceeding and involves only the substantive right of the accused to be free from illegal
detention by the asylum state for the purpose of extradition. The legality
or illegality of the detention depends entirely on federal law establishing
the requisites for extradition. Otherwise, extradition is a procedural provision which does not impinge on any substantive right of any individual
and does not affect any provision of the Constitution or its amendments
protecting such rights."
Habeas corpus is the remedy for testing the validity of the detention by
the asylum state. It is expressly provided for by the Illinois statute, although the federal statute is silent. However, there is no question of the
availability of this remedy.' 2 The scope of habeas corpus review is limited.' 3 It is not the purpose of the writ to substitute the judgment of
another tribunal upon the facts or the law of the matter to be treated by
7 Appleyard v. Massachusetts, 203 U.S. 222 (1906); Brewer v. Goff, 138 F. 2d 710
(C.A., 10th, 1943); Kahn v. Meyering, 348 Ill. 486, 181 N.E. 300 (1932).
8 People ex rel. Gardner v. Mulcahy, 390 Ill. 511, 62 N.E. 2d 418 (1945).
9 Gilbert v. Babb, 415 Il1. 349, 114 N.E. 2d 358 (1953); People ex rel. Guidotti v.
Bell, 372 Ill. 572, 25 N.E. 2d 45 (1940).
'oWillis v. Mulcahy, 392 Ill. 411, 64 N.E. 2d 860 (1946); Strobel v. Mulcahy, 390
I11.233, 60 N.E. 2d 397 (1945).
11Johnson v. Matthews, 182 F. 2d 677 (App. D.C., 1950).
12United States ex rel. Darcy v. Superintendent of County Prisons, 111 F. 2d
409 (C.A. 3d, 1940); Ex parte Birdseye, 244 Fed. 972 (S.D. N.Y., 1917).
13 State v. Parish, 242 Ala. 7, 5 S. 2d 828 (1941).
CASE NOTES
the court of the demanding state. 14 The question of the guilt or innocence
of the accused, or the method of his apprehension, are not for consideration. The hearing on the writ of habeas corpus is limited to the determination of whether or not the two requisite elements for extradition are
present.'
The purpose of the federal constitutional provision and statute is the
expeditious return of fugitives from justice to the demanding state. 16 A
state statute which hinders or impedes the operation of the federal statute
has been held void. 17 Further, it has been held that a state statute in aid
of extradition need not necessarily be complied with.' 8
Extradition by direct requisition upon the asylum state supersedes prior
proceedings under any state process of extradition. Procedural errors in
the prior proceedings do not invalidate the subsequent proceedings on the
direct requisition. The right of the accused is limited to a review by writ
of habeas corpus of the two essential elements enumerated above. Other
matters are extraneous to the procedure, and do not constitute grounds for
relief.
LABOR LAW-DISLOYALTY AS CAUSE FOR DISCHARGE
A labor union representing television technicians appealed to the United
States Supreme Court for modification of a National Labor Relations
Board order upholding the discharge of certain technicians by the television station. At a critical time in the initiation of the station's television
service, the technicians sponsored or distributed handbills, which made a
sharp, public, disparaging attack upon the quality of the station's product
and its business policies, in a manner reasonably calculated to harm the
station's reputation. The handbills contained no reference to a labor dispute. The decision of the Supreme Court was that these acts constituted
disloyalty and, thus, grounds for "discharge for cause" and not an "unfair
labor practice," within the meaning of the Taft-Hartley Act. The decision was not influenced by the fact that at the time of distribution of the
handbills a labor dispute existed between the station and the union. NLRB
v. Local Union No. 1229, InternationalBroth. of Elec. Workers, 74 S.Ct.
172 (1953).
14Drew v. Thaw, 235 U.S. 432 (1914); Flowers v. Ross, 196 F. 2d 25 (App. D.C.,
1952).
15Davis v. O'Connell, 185 F. 2d 513 (C.A. 8th, 1950); Dean v. State of Ohio,
107 F. Supp. 937 (N.D. W. Va., 1952); Gerrish v. New Hampshire, 97 F. Supp.
527 (S.D. Me., 1951).
16 Biddinger v. Commissioner of Police, 245 U.S. 128 (1917).
'7 State v. Parrish, 242 Ala. 7, 5 So. 2d 828 (1941).
1 In re Sanders, 31 N.E. 2d 246 (Ohio App., 1937); Ex parte Bergman, 60 Tex.
(rim. Rep. 8, 130 S.W. 174 (1910).